CRIMINALIZING SILENCE: THE CONSTITUTIONAL DEBATE ON MARITAL RAPE IN INDIA

ABSTACT:

Marital rape represents one of the most entrenched paradoxes in Indian criminal jurisprudence: while the Constitution guarantees equality, dignity, and autonomy, the criminal law continues to exempt non-consensual intercourse within marriage from punishment. This article examines the constitutional and moral dimensions of the marital rape exception under Section 375 of the Indian Penal Code (“IPC”), critically analyzing its inconsistency with Articles 14, 15, and 21 of the Constitution. Drawing upon judicial precedents, comparative jurisprudence, and recent developments in the Delhi High Court and Supreme Court, this paper argues that the persistence of the exception reflects a clash between social morality and constitutional morality.

1. INTRODUCTION:

Marriage in India has traditionally been viewed as a sacred institution grounded in conjugal rights and mutual obligations. Yet, beneath this sanctity lies a legal vacuum that denies married women full control over their own bodies. Exception 2 to Section 375 of the IPC states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” This provision effectively grants a blanket immunity to husbands for acts that would otherwise constitute rape if committed outside marriage.

This immunity, rooted in colonial-era patriarchy and outdated notions of coverture, stands in direct contradiction to the modern constitutional promise of equality and dignity. The constitutional question is no longer whether the exception is unjust—it is whether it can survive in a democratic republic governed by constitutional morality.

II. HISTORICAL BACKGROUND: THE COLONIAL LEGACY:

The marital rape exception originated in Sir Matthew Hale’s 17th-century dictum that a husband cannot be guilty of raping his lawful wife, for by marriage she gives irrevocable consent to sexual intercourse.[1] When the IPC was drafted in 1860 under Lord Macaulay, this English common law presumption was directly imported into Indian law.

Although the age threshold for the exception has been modified over time—most notably through the Criminal Law (Amendment) Act, 2013, following the Nirbhaya case—the core immunity remains intact. The judiciary has repeatedly expressed discomfort but has deferred to legislative wisdom, perpetuating the colonial relic.

III. THE CONSTITUTIONAL FRAMEWORK: EQUALITY, DIGNITY, AND AUTONOMY:

• Article 14 – Equality Before Law:

Article 14 guarantees equality before the law and equal protection of the laws. The marital rape exception violates this by arbitrarily distinguishing between married and unmarried women without a rational nexus to a legitimate state objective.

In State of West Bengal v. Anwar Ali Sarkar,[2] the Supreme Court held that classification under Article 14 must not be arbitrary or discriminatory. By this logic, exempting husbands from prosecution based solely on marital status creates a classification that is manifestly arbitrary.

• Article 15 – Non-Discrimination on Grounds of Sex:

Article 15(1) prohibits discrimination on the grounds of sex. The marital rape exception discriminates against women by denying them equal protection from sexual violence. Moreover, Article 15(3) allows for protective discrimination in favor of women; however, the exception cannot be justified as such it is not protective but exclusionary.

• Article 21 – Right to Life and Personal Liberty:

Article 21’s jurisprudence, particularly post-Maneka Gandhi v. Union of India,[3] recognizes the right to live with dignity, privacy, and bodily autonomy. In Justice K.S. Puttaswamy (Retd.) v. Union of India,[4] the Court emphasized that privacy includes decisional autonomy over intimate choices. The right to sexual autonomy, therefore, cannot be suspended upon marriage.

IV. JUDICIAL DEVELOPMENTS IN INDIA:

• Independent Thought v. Union of India (2017):

In this landmark case,[5] the Supreme Court read down the marital rape exception by raising the age of consent within marriage from fifteen to eighteen years, aligning it with the Protection of Children from Sexual Offences Act (“POCSO”). The Court observed that child marriage cannot justify sexual intercourse without consent, underscoring the primacy of bodily integrity.

Although limited to minors, Independent Thought paved the way for challenging the exception for adult women. The Court’s reasoning—that marriage does not erase consent—signals the evolving constitutional perspective.

• Delhi High Court Split Verdict (2022):

In RIT Foundation v. Union of India,[6] a division bench of the Delhi High Court delivered a split verdict on the constitutionality of Exception 2. Justice Rajiv Shakdher held the exception unconstitutional for violating Articles 14, 15, and 21, emphasizing that “marriage is not a license to sexual violence.” Justice C. Hari Shankar, however, upheld the exception, reasoning that criminalization of marital rape would “destabilize the institution of marriage.”

The matter now awaits final determination by the Supreme Court, which has clubbed multiple petitions and reserved judgment on the issue.

V. THE CLASH BETWEEN SOCIAL AND CONSTITUTIONAL MORALITY:

As Justice D.Y. Chandrachud observed in Navtej Singh Johar v. Union of India,[8] constitutional morality must prevail over social morality. The marital rape exception survives largely due to patriarchal notions that view marriage as a sacrament rather than a contract between equals.

Social morality, grounded in cultural conservatism, argues that criminalizing marital rape would lead to “misuse” and disrupt family harmony. However, constitutional morality rooted in liberty, dignity, and equality demands that no relationship, however sacred, should justify violence or coercion. This tension encapsulates the struggle between the transformative vision of the Constitution and the inertia of traditional values.

The Law Commission of India, in its 172nd Report (2000),[9] recommended retaining the exception, citing societal conditions. However, the Justice J.S. Verma Committee Report (2013) unequivocally called for its repeal, recognizing that immunity for marital rape is inconsistent with Articles 14 and 21.[10]

Despite repeated parliamentary discussions, successive governments have hesitated to act. In 2016, the Union Government stated before the Rajya Sabha that criminalizing marital rape was “not suitable to Indian conditions,” reflecting continued political reluctance.

VI. EMPERICAL EVIDENCE AND SOCIAL REALITIES:

According to the National Family Health Survey (NFHS-5) (2019–21), over 30% of married women in India reported experiencing spousal violence.[11] Yet, most such acts go unreported due to stigma and lack of legal recognition.

Criminalizing marital rape would not only provide legal recourse but also signal societal recognition of women’s bodily autonomy. Legal reform, when combined with awareness, can catalyze social change—as demonstrated by the progressive impact of the Vishaka Guidelines (1997) on workplace harassment law.

VII. ETHICAL AND DOCTRINAL DIMENTIONS:

• Consent as a Continuous Process – Consent cannot be presumed or perpetually granted through marriage; it must be ongoing and voluntary.

• Marriage as Partnership, Not Ownership – The constitutional vision of equality mandates mutual respect, not control.

• State’s Positive Obligation – Under international instruments such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to which India is a party, the state must ensure protection from gender-based violence in all settings, including marriage.

CONCLUSION:

The marital rape exception stands as an anachronistic remnant of a patriarchal past, incompatible with a constitutional democracy that values equality, dignity, and liberty. It perpetuates gendered subordination by granting legal sanction to sexual violence within marriage. As the Supreme Court prepares to decide on this historic issue, it faces not merely a question of statutory interpretation but of constitutional identity. Criminalizing marital rape would not undermine the sanctity of marriage; rather, it would reaffirm that true sanctity lies in consent, respect, and equality.

The silence of the law has lasted too long. It is time to criminalize that silence.

REFERANCE: (Bluebook 21st ed.)

[1] Sir Matthew Hale, The History of the Pleas of the Crown 629 (1736).
[2] State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75 (India).
[3] Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (India).
[4] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (India).
[5] Independent Thought v. Union of India, (2017) 10 SCC 800 (India).
[6] RIT Found. v. Union of India, W.P. (C) No. 284/2015, Delhi High Court (2022).
[7] R v. R, [1991] 4 All ER 481 (H.L.).
[8] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India).
[9] Law Comm’n of India, 172nd Report on Review of Rape Laws (2000).
[10] Justice J.S. Verma Committee Report, Report on Amendments to Criminal Law (2013).
[11] Ministry of Health & Family Welfare, National Family Health Survey (NFHS-5) (2019-21)

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